VOLINSKY and PAPPAS
Volinsky and Pappas devote their memorandum to arguing that the Court should duck the questions transferred by the Governor. Because I already covered their argument in my discussion of the Attorney General’s memorandum, I will not repeat it here.
STATE SENATE
The State Senate’s attorney, Rick Lehmann, researched the history of the term domicile in Part I, Article 11. Statements made at the 1974 constitutional convention by the delegates indicate that “[t]he current situation, in which a person can have a domicile in New Hampshire without being a resident is precisely the opposite of the original intent of the amendment’s drafters.”
In my memorandum, I made a similar point:
Had this Court construed the term “domicile” in Part I, Article 11 to reflect the common law definition of domicile at the time the State Constitution was enacted —“when required to interpret a provision of the constitution, we … give the words in question the meaning they must be presumed to have had to the electorate when the vote was cast”— this Court would have been hard-pressed to rule that the “challenged language” violated Part I, Article 11. New Hampshire’s “venerable common law of domicile … views an intention to remain permanently or indefinitely in a particular town as essential to the acquisition of domicile.” Newburger v. Peterson, 344 F. Supp. 559 (1972) citing State v. Daniels, 44 N.H. 383 (1862); see also Leach v. Pillsbury, 15 N.H. 137 (1844); Atherton v. Thornton, 8 N.H. 178 (1835). By declaring New Hampshire as his or her domicile in the sense contemplated by Part I, Article 11 the voter would be declaring “an intention to remain permanently or indefinitely,” which would make the voter “subject to the laws of the state of New Hampshire which apply to all residents, including laws requiring a driver to register a motor vehicle and apply for a New Hampshire[] driver’s license.”
There is a typo in my memorandum. Where I wrote “at the time the State Constitution was enacted,” it should have read “at the time the 1974 amendment to the State constitution was enacted.” If I had had additional time to devote to the memorandum, I would have looked into what the voter’s guide to the 1974 amendment had to say about the term “domicile.” Lehmann’s research suggests that to the extent the guide addressed domicile, it was consistent with the common law definition. To the extent the guide did not, it is reasonable to assume that the common law definition informed the voters.
In either case, Lehmann is correct that the current statutory relationship between “domicile” and “resident” is the opposite of the relationship inherent in the constitutional definition of domicile. This means that the opponents of House Bill 1264 are undeniably incorrect when they insinuate that the legislature would be violating Part I, Article 11 by not maintaining the current statutory definitions.
